451 U.S. 596

101 S.Ct. 1945

68 L.Ed.2d 472

Frederico RODRIGUEZ, Luis Perez, and Srecko Barulec,Petitioners,

v.COMPASS SHIPPING CO., LTD., et al.

No. 79-1977.

Argued Jan. 12, 1981.Decided May 18, 1981.*

Rehearing Denied July 2, 1981.

See 453 U.S. 923, 101 S.Ct. 3160.

Syllabus

Section 33(b) of the Longshoremen's and Harbor Workers' CompensationAct provides that a longshoreman's acceptance, pursuant to an award in acompensation order, of compensation from his employer for injuriesincurred in the course of employment "shall operate as an assignment tothe employer of all right of the person entitled to compensation to recoverdamages against [a person other than the employer] unless [thelongshoreman] shall commence an action against such third person withinsix months after such award." Petitioner longshoremen, who had beeninjured aboard ship in the course of their employment, acceptedcompensation under such an award from their respective stevedoreemployers. More than six months after the awards, each petitionercommenced an action in Federal District Court against the shipownerinvolved, alleging that the shipowner had negligently caused his injury.The District Courts granted summary judgments for the shipowners(respondents) on the ground that, because petitioners failed to bring suitwithin six months of the compensation awards, their causes of action hadbeen assigned to their employers who thereafter had the exclusive right topursue the third-party claims. The Court of Appeals affirmed.

Held : Section 33(b) precludes petitioners from pursuing their third-partyclaims against respondent shipowners. Pp. 602-618.

(a) The language of § 33(b) is both mandatory and unequivocal. The onlyconditions precedent to the statutory assignment are the acceptance ofcompensation pursuant to an award in a compensation order and thepassage of the required 6-month period, both of which conditions weresatisfied in these cases. When such assignment occurs, it transfers to theemployer the employee's entire right to commence a third-party action, thewords "all right" in § 33(b) precluding the possibility of only a partialassignment or concurrent rights in the employee and employer to sue inthe postassignment period. Although petitioners' employers failed topursue the assigned claims, the statute does not expressly require that theydo so nor does it provide for relief to employees should the assignedclaims lie dormant. Pp. 602-604.

(b) Nothing in the legislative history shows any intent by Congress topreserve the employee's right to commence a third-party suit after the 6-month period expires. To the contrary, the history indicates that once thatperiod expires, the employer possesses complete control of third-partyclaims. Moreover, the history forecloses the argument that Congress didnot intend an assignment of a third-party claim to be effective unless therewas an absence of any potential conflict of interest between the assigneeand the longshoreman. The simple standard set forth in § 33(b)—exclusive control of the cause of action in the employee for six monthsand in the employer thereafter protects the interests of both employees andemployers and is consistent with the Act's general policy of encouragingthe prompt and efficient administration of compensation claims. Pp. 604-612.

(c) There is no evidence that Congress gave the employee the right orprocedural mechanism, after assignment, to compel the assignee either tobring a third-party suit or to reassign the cause of action to the employeein response to a formal request to do so. And Congress' failure to amend §33(b) in 1972, when the Act was thoroughly reexamined, does notevidence congressional approval of a Court of Appeals' decision holdingthat, notwithstanding § 33(b), a longshoreman who has acceptedcompensation under an award may maintain a third-party action wheneverit becomes evident that his employer has no intention to file suit on theassigned claim. Such legislative inaction does not modify the plain termsof § 33(b). Pp. 612-617.

617 F.2d 955 and 622 F.2d 572 and 575, affirmed.

Martin Lassoff, New York City, for petitioners.

Joseph T. Stearns and Francis X. Byrn, New York City, for respondents.

Justice STEVENS delivered the opinion of the Court.

1 The question presented in these three cases1 is whether a longshoreman mayprosecute a personal injury action against a negligent shipowner after his rightto recover damages has been assigned to his employer by operation of § 33(b)of the Longshoremen's and Harbor Workers' Compensation Act (Act), 33U.S.C. § 901 et seq.2

2 Each petitioner is a longshoreman who was injured aboard ship in the regularcourse of his employment. Each asserted a claim for compensation against thestevedore by whom he was employed. Each accepted compensation from hisemployer pursuant to an award in a compensation order.3 More than six monthslater,4 each commenced an action against the shipowner alleging that thedefendant had negligently caused his injury.5 The District Courts grantedmotions for summary judgment filed by the respondent shipowners on theground that, by reason of the longshoremen's failure to bring suit within sixmonths, their causes of action had been assigned to the stevedores whothereafter had the exclusive right to pursue the third-party claims.6 The Court ofAppeals for the Second Circuit affirmed, 617 F.2d 955 (1980); 622 F.2d 572and 575 (1980),7 and we granted certiorari to resolve the conflict with thecontrary holding of the Court of Appeals for the Fourth Circuit in Caldwell v.Ogden Sea Transport, Inc., 618 F.2d 1037 (1980). 449 U.S. 818, 101 S.Ct. 69,66 L.Ed.2d 20.8

3 There is no dispute about the parties' respective interests in either (a) a claimasserted by a longshoreman against a shipowner within the 6-month periodfollowing acceptance of a compensation award, or (b) a claim asserted by thestevedore against the shipowner after the 6-month period has elapsed. In theformer situation, the longshoreman has exclusive control of the action; anyrecovery in excess of the amount required to pay the cost of litigation and toreimburse the employer for the statutory compensation paid pursuant to theaward belongs entirely to the longshoreman.9 In the latter situation, thestevedore has exclusive control of the litigation; any net recovery—after thecompensation award and the litigation costs have been recouped—must beshared 80% by the longshoreman and 20% by the employer.10 The questionpresented by these cases is what right, if any, the longshoreman has against thethird-party shipowner if he does not sue within the 6-month period and theemployer fails to do so thereafter. Both the plain language of the statute and thehistory of its amendments dictate the same answer.

4 * Even though the language of § 33(b) is simple and direct, it is appropriate tobegin by quoting our description last Term of the context in which it appears:

5 "The Act provides a comprehensive scheme governing an injuredlongshoreman's rights against the stevedore and shipowner. The longshoremanis not required to make an election between the receipt of compensation and adamages action against a third person, 33 U.S.C. § 933(a). After receiving acompensation award from the stevedore, the longshoreman is given six monthswithin which to bring suit against the third party. 33 U.S.C. § 933(b). If he failsto seek relief within that period, the acceptance of the compensation awardoperates as an assignment to the stevedore of the longshoreman's rights againstthe third party." Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 77-78, 100S.Ct. 925, 927-928, 63 L.Ed.2d 215.

6 As is apparent, § 33(b) plays a central role in this comprehensive legislativescheme.

7 The language of § 33(b) is both mandatory and unequivocal. It provides that theacceptance of compensation under an award "shall operate as an assignment tothe employer of all right of the person entitled to compensation to recoverdamages against such third person unless such person shall commence an actionagainst such third person within six months after such award." 33 U.S.C. §933(b) (emphasis supplied).11

8 The only conditions precedent to the statutory assignment are the acceptance ofcompensation pursuant to an award in a compensation order and the passage ofthe required period of six months. These conditions are admittedly satisfied inthese cases.12 The statutory assignment encompasses "all right" of theemployee to recover damages from a third party. These words preclude thepossibility that the assignment is only a partial one that does not entirely divestthe employee of his right to sue, or that the employee and the employer possessconcurrent rights to sue in the post-assignment period. When the § 33(b)assignment occurs, it transfers the employee's entire right to commence a third-party action to the employer.

9 Application of this plain statutory language to the undisputed facts in thesecases leads to the conclusion that petitioners may not pursue their claims fordamages against the respondent shipowners. Petitioners filed these actions wellbeyond the 6-month period following acceptance of compensation, and offeredno excuse for their delay. Although their employers failed to pursue theassigned claims, the statute does not expressly require that employers pursue

II

third-party claims, nor does it provide for relief to employees should theassigned claims lie dormant. Therefore, petitioners appear to be without a causeof action under the statute.

10 In an attempt to avoid the conclusion mandated by its plain language,petitioners contend that the Act should be construed either to include anunexpressed condition precedent to any effective assignment—namely, theabsence of any possible conflict of interest between the employer-stevedore andthe employee—or to grant the employee an implicit right to have the third-partyclaim reassigned if the employer fails to sue. Normally, these contentionswould be foreclosed by the lack of any ambiguity in the statutory language. Butthe statutory language was also unambiguous in 1956 when this Court held inCzaplicki v. The Hoegh Silvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed.1387, that § 33(b) contained a limited exception. It therefore is appropriate toevaluate petitioners' contentions in the light of the relevant legislative history.In making this evaluation, however, we adhere to the rule that, "[a]bsent aclearly expressed legislative intention to the contrary, [the statutory] languagemust ordinarily be regarded as conclusive." Consumer Product Safety Comm'nv. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056, 64 L.Ed.2d766.

11 As originally enacted in 1927, the Act gave an injured longshoreman the rightto elect between the certain recovery of compensation from his employerwithout any proof of fault, or the less certain, but probably more generous,remedy of an action for damages against a negligent third party.13 Theemployee's election to accept compensation under the Act effected animmediate assignment to his employer of his cause of action for negligence.14

Under the original Act, the longshoreman could pursue either remedy but notboth, and nothing more than the acceptance of compensation was required toevidence the employee's election. See, e. g., Toomey v. Waterman S. S. Corp.,123 F.2d 718, 721 (CA2 1941).

12 In 1938, Congress amended the Act to provide that the acceptance ofcompensation would operate as an assignment only if the payment was "underan award in a compensation order filed by the deputy commissioner."15 Thisprocedural change was designed to protect the employee from the harshconsequences of an improvident election.16 Although Congress thereby reducedthe danger that an employee would make an election without being advisedabout its consequences, the 1938 amendment did nothing to mitigate thoseconsequences once the election was made.

13 In 1956, this Court held that an injured longshoreman could enforce his right ofaction against a third party, notwithstanding his acceptance of compensationfrom his employer. Czaplicki v. The Hoegh Silvercloud, supra.17 In that case,both the employer and the third party allegedly responsible for the unseaworthycondition that had caused the employee's injury were insured by the TravelersInsurance Co. Because the stevedore had no interest in recovering thecompensation payments that had been made by its insurance carrier,18 andbecause that carrier would be responsible for both prosecuting and defendingany third-party claim, no one other than the injured longshoreman had asufficient interest in the claim to bring suit. Because of the conflict between theassignee's interest and the interest of the employee, the Court construed the Actto allow the longshoreman to enforce the third-party claim in his own name.19

The Court did not hold that no assignment had occurred; rather, it held thatunder "the peculiar facts" of the case, the election and consequent assignmentdid not bar the employee's action.20

14 Two years after Czaplicki, in Johnson v. Sword Line, Inc., 257 F.2d 541 (1958),the Court of Appeals for the Third Circuit held that a different sort of conflictof interest would also preserve the longshoreman's right to sue a third partyafter accepting compensation from his employer. This Court had previouslyheld, in Ryan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76S.Ct. 232, 100 L.Ed. 133, that a shipowner who was liable to a longshoremancould assert a claim for indemnity against the employer-stevedore. Thatholding inevitably created a conflict between the stevedore's interest inrecouping the compensation awarded to the longshoreman and its interest inavoiding the risk of a substantially larger liability as an indemnitor. The Courtof Appeals reasoned that the stevedore's potential liability under the indemnityclaim authorized by Ryan Stevedoring had the practical effect of enlarging theconflict-of-interest rationale of Czaplicki, which had narrowly rested on thepeculiar facts of that case, to encompass substantially every case in which astevedore failed to bring a third-party action.21 Accordingly, the courtconcluded that a conflict of interest could be presumed to exist whenever thestatutory assignee failed to pursue or to reassign the assigned claim, unless thatclaim was obviously lacking in merit. See 257 F.2d, at 544-546.22

15 The impact of Ryan Stevedoring upon third-party claims assigned to employersby operation of § 33(b) was brought to the attention of Congress as well. In1956, a House Subcommittee conducted hearings on proposed legislation thatultimately evolved into the 1959 amendments to the Act.23 One of the billsconsidered by the Subcommittee was H.R.5357, which provided, among otherthings, that an employee could commence a third-party suit within six monthsafter accepting compensation, and that an employer who successfully pursued

an assigned third-party claim was entitled to keep one-third of any net recovery.As explained by Congressman Zelenko, the bill's author, these provisions weredesigned to mitigate the problems identified in Justice Black's dissentingopinion in Ryan Stevedoring.24 Other witnesses appearing before theSubcommittee also expressed concern about the conflict-of-interest problemcreated by Ryan Stevedoring and endorsed H.R.5357 as an effective solution tothat problem.25

16 In 1959, Congress acted to remedy the problems created by the potentialconflict between the interests of the employer and the employee in prosecutingthird-party claims.26 Its solution was not to create or to define an exception tothe assignment by operation of law. Rather, Congress substantially adopted thecentral provisions of the Zelenko bill by amending § 33(b) to postpone theassignment by operation of law until six months after the acceptance ofcompensation under an award, and by amending § 33(e) to allow an employerto retain one-fifth of the net proceeds of its successful third-party action.27 Theeffect of the 6-month provision, of course, was to give the longshoreman anunqualified right to bring a third-party action during the 6-month period. If hisfinancial circumstances made it imperative that he accept a prompt settlementof his compensation claim, he could do so without forfeiting his right to seek amore liberal recovery from a responsible third party. Moreover, by bringing hisown action, the longshoreman could avoid the risk that his employer's potentialconflict of interest—or possibly erroneous evaluation of the merits of the claim—might result in its abandonment.28 The amendment to § 33(e) provided anadditional incentive to the employer to sue after assignment of the claim bygiving him a share in any excess recovery.

17 Nothing in the 1959 amendments purports to preserve the employee's right tocommence a third-party suit after the 6-month period expires. Although theamendments encourage employers to pursue assigned claims, they do notqualify the assignee's control of the cause of action after the assignment takesplace. To the contrary, the legislative history indicates that once the 6-monthperiod expires, the employer possesses complete control of third-party claims.29

18 This history forecloses the argument that Congress did not intend an assignmentof a third-party claim to be effective unless there was an absence of anypotential conflict of interest between the assignee and the longshoreman. Thestatutory language provides a different and clearly defined solution to theconflict-of-interest problem that had been created by Ryan Stevedoring.30

Congress unequivocally made the choice in favor of first giving the employeeexclusive control of the cause of action for a 6-month period and then givingthe employer exclusive control thereafter, instead of opting for any form of

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IV

simultaneous joint or partial control. The simple standard set forth in § 33(b)protects the interests of both employees and employers, and is consistent withthe general policy of the Act to encourage the prompt and efficientadministration of compensation claims. See Potomac Electric Power Co. v.Director, Office of Workers' Compensation Programs, 449 U.S. 268, 282, 101S.Ct. 509, 517, 66 L.Ed.2d 446.

19 Although the assignment at the end of the 6-month period occurs automatically,the Court of Appeals for the Fourth Circuit has held that the employee retains aright after assignment to compel the assignee either to bring a third-party suit orto reassign the cause of action to the employee in response to a formal requestto do so. See Caldwell v. Ogden Sea Transport, Inc., 618 F.2d 1037 (1980).The court "readily found" the procedural mechanism for implementing thisnonstatutory right to a reassignment, id., at 1046, but we find no evidence thatCongress created either the substantive right itself or the procedural rights thatthe court discerned.

20 The predicate for the Fourth Circuit's analysis was an assumption thatCongress did not intend to allow the longshoreman to lose his rights against athird party simply because (a) he failed to take any action within six monthsand (b) his employer decided not to sue the third party thereafter.31 To avoidthe "practical problem" presented in such a situation, the court fashioned a"solution" that the Act "does not specifically provide." Id., at 1045. We arepersuaded that the reason Congress did not specifically provide the solutionwhich the court readily found is that Congress did indeed intend to require theemployee either to act promptly or to accept the consequences of an assignmentof his claim to the employer.32 One of the consequences of such an assignmentis the risk that the employer will choose not to sue. The comprehensivecharacter of the procedures outlined in the Act precludes the fashioning of anentirely new set of remedies to deal with an aspect of a problem that Congressexpressly addressed.33 The fact that parties sometimes fail to assert meritoriousclaims within the period authorized by law is not a sufficient reason forrefusing to enforce an unequivocal statutory bar.

21 Finally, relying upon Edmonds v. Compagnie Generale Transatlantique, 443U.S. 256, 99 S.Ct. 2753, 61 L.Ed.2d 521, petitioners argue that Congress'failure to amend § 33(b) in 1972, when the Act was thoroughly re-examined,evidences implicit congressional approval of the decision of the Court of

Appeals for the District of Columbia Circuit in Potomac Electric Power Co. v.Wynn, 120 U.S.App.D.C. 13, 343 F.2d 295 (1965) (per curiam ). In that case,the court held that a longshoreman who has accepted compensation under anaward may maintain a third-party action whenever it becomes evident that hisemployer has no intention to file suit on the assigned claim. Id., at 16, 343 F.2d,at 298. See also Joyner v. F & B Enterprises, Inc., 145 U.S.App.D.C. 262, 264,448 F.2d 1185, 1187 (1971). The court construed the 1959 amendments asenlarging the employee's protection, and considered the rationale of Czaplickito apply whenever a potential conflict of interest is present. In its judgment, theemployer's failure to sue was sufficient evidence of a conflict to justify anindependent action by the employee, notwithstanding the assignmentprovisions in the Act.34 120 U.S.App.D.C., at 16, 343 F.2d, at 298.

22 For reasons already stated, we are satisfied that that opinion did not correctlyconstrue the 1959 amendments.35 It is true that Congress did not expresslydisclaim that case in 1972, but that legislative inaction does not modify theplain terms of the 1959 amendments. Nor did Congress expressly endorse theWynn decision. More importantly, the statutory interpretation announced inWynn can hardly be compared to the well-established rule of maritime law atissue in Edmonds. There is no reason to believe that "Congress has relied uponconditions" that Wynn created. Edmonds, supra, at 273, 99 S.Ct., at 2763.36 Infact, the statutory changes adopted in 1972 are entirely consistent with ourinterpretation of § 33(b). Moreover, those changes remind us that one of thepurposes of the Act is to minimize the need for litigation as a means ofproviding compensation for injured workmen. SeeBloomer, 445 U.S., at 86,100 S.Ct., at 932.

23 Three of the 1972 Amendments are pertinent. First, the level of benefits wassubstantially increased, thereby increasing the likelihood that the statutorycompensation recoverable without proof of fault would be adequate.37 Second,the shipowner's right to seek indemnity from the stevedore under RyanStevedoring was eliminated, thereby removing a category of litigation from thecourts, placing more definite limits on the stevedore's insurance costs, andremoving a potential source of conflict between the interests of employers andemployees.38 Third, the shipowner's nearly absolute liability forunseaworthiness was eliminated, thereby further narrowing the area of potentiallitigation and increasing the relative importance of statutory awards as thefavored method of compensation.39 See generally Scindia Steam NavigationCo. v. De Los Santos, 451 U.S. 156, 164-165, 101 S.Ct. 1614, 1620-1621, 68L.Ed.2d 1. In making these changes, Congress necessarily balanced theconflicting interests of the vessel owner, the stevedore, and the longshoreman.As with other problems of interpreting the intent of Congress in fashioning

V

Together with Perez v. Arya National Shipping Line, Ltd., and Barulec v. OveSkou, R. A., also on certiorari to the same court (see this Court's Rule 19.4).

Although a single petition for certiorari was filed on behalf of the threepetitioners, their lawsuits proceeded independently of one another at earlierstages of the litigation. Three separate District Court opinions were issued. SeeRodriguez v. Compass Shipping Co., 456 F.Supp. 1014 (SDNY 1978); Perez v.Arya National Shipping Line, Ltd., 468 F.Supp. 799 (SDNY 1979); Barulec v.Ove Skou, R. A., 471 F.Supp. 358 (SDNY 1979). The Court of Appealsaffirmed the decision in Rodriguez in a published opinion, 617 F.2d 955 (1980),and on the same day affirmed the Perez and Barulec decisions in unpublishedorders citing its opinion in Rodriguez. See Barulec v. Ove Skou, R. A., 622 F.2d572 (1980); Perez v. Arya National Shipping Line, Ltd., 622 F.2d 575 (1980).

Section 33(b) of the Act provides:

various details of this legislative compromise, the wisest course is to adhereclosely to what Congress has written.40 The meaning of § 33(b) is plain andshould be respected.

24 In sum, we conclude that the Court of Appeals in these cases correctly held that§ 33(b) precludes petitioners from pursuing their third-party claims. Whateverthe continued validity of our decision in Czaplicki, a question we need not anddo not decide today,41 these cases do not involve "the peculiar facts" on whichCzaplicki was based. Rather, petitioners essentially have relied upon conflictsinherent in the statutory scheme and in the relationships among longshoremen,stevedores, and shipowners. The notion adopted in some post-Czaplickidecisions that a conflict of interest may be presumed whenever an employerdoes not sue on an assigned claim is simply untenable in light of the plainstatutory language and the history of the 1959 and 1972 Amendments. Weleave for another day the question whether an assignment under § 33(b) willbar a longshoreman's third-party action if there is specific evidence of a seriousconflict of interest Congress could not have foreseen when it enacted andamended § 33.

The judgments of the Court of Appeals are

25 Affirmed.

*

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2

"Acceptance of such compensation under an award in a compensation orderfiled by the deputy commissioner or [Benefits Review] Board shall operate asan assignment to the employer of all right of the person entitled tocompensation to recover damages against such third person unless such personshall commence an action against such third person within six months aftersuch award." 44 Stat. (part 2) 1440, as amended, 33 U.S.C. § 933(b).

In the Rodriguez and Barulec cases, the plaintiffs and their employers agreed tosettlements in informal conferences convened by the Office of Workers'Compensation Programs. Although a since-amended regulation required thatsuch settlements be embodied in formal compensation orders, see 20 CFR §702.315(a) (1976), no formal orders were entered in these cases. Accordingly,the plaintiffs argued in the lower courts that the assignment provision of §33(b) had not been activated because they had not accepted "compensationunder an award in a compensation order filed by the deputy commissioner orBoard," as required by the statute. The District Courts rejected petitioners'argument, concluding that settlement agreements reached after official informalconferences were equivalent to formal orders for purposes of § 33(b). SeeRodriguez, supra, at 1018-1020; Barulec, 471 F.Supp., at 360-362. The Courtof Appeals agreed. See 617 F.2d, at 958-960. Although petitioners challengedthis ruling in their petition for certiorari, our order granting the petition did notextend to this question. 449 U.S. 818, 101 S.Ct. 69, 66 L.Ed.2d 20.Accordingly, for purposes of our decision, we assume that their acceptance ofcompensation operated as an assignment under § 33(b). Petitioner Perezapparently did not contend below that he had not accepted "compensation underan award" within the meaning of § 33(b). See 468 F.Supp. 799 (SDNY 1979).

Rodriguez filed suit approximately 32 months, Perez filed suit approximately15 months, and Barulec filed suit approximately 1 year after acceptingcompensation. See 617 F.2d, at 957; Perez, 468 F.Supp., at 800; Barulec, 471F.Supp., at 359.

The Act expressly provides that the employee is not required to elect betweenhis right to compensation from his employer and his claim for damages againsta third party. Section 33(a), as set forth in 33 U.S.C. § 933(a), provides:

"If on account of a disability or death for which compensation is payable underthis chapter the person entitled to such compensation determines that someperson other than the employer or a person or persons in his employ is liable indamages, he need not elect whether to receive such compensation or to recoverdamages against such third person."

Section 5(b) of the Act, as set forth in 33 U.S.C. § 905(b), provides:

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4

5

"In the event of injury to a person covered under this chapter caused by thenegligence of a vessel, then such person, or anyone otherwise entitled torecover damages by reason thereof, may bring an action against such vessel as athird party in accordance with the provisions of section 933 of this title, and theemployer shall not be liable to the vessel for such damages directly or indirectlyand any agreements or warranties to the contrary shall be void. If such personwas employed by the vessel to provide stevedoring services, no such actionshall be permitted if the injury was caused by the negligence of personsengaged in providing stevedoring services to the vessel. If such person wasemployed by the vessel to provide ship building or repair services, no suchaction shall be permitted if the injury was caused by the negligence of personsengaged in providing ship building or repair services to the vessel. The liabilityof the vessel under this subsection shall not be based upon the warranty ofseaworthiness or a breach thereof at the time the injury occurred. The remedyprovided in this subsection shall be exclusive of all other remedies against thevessel except remedies available under this chapter."

In all three cases, although the District Courts rejected the contention that astevedore's failure to pursue an assigned claim, without more, establishes aconflict of interest resulting in reassignment of the claim to the longshoreman,the plaintiffs were given an opportunity to present evidence establishing aspecific conflict of interest, such as that found in Czaplicki v. The HoeghSilvercloud, 351 U.S. 525, 76 S.Ct. 946, 100 L.Ed. 1387. See Rodriguez, supra,at 1023; Perez, 468 F.Supp., at 801; Barulec, 471 F.Supp., at 362. Despite theopportunity to pursue further discovery, none of the plaintiffs was able topresent evidence supporting his conflict-of-interest allegation, and the DistrictCourts accordingly entered summary judgment in favor of the shipowners.

See n. 1, supra.

The Fourth Circuit issued its opinion in Caldwell eight days after the Rodriguezopinion was issued by the Second Circuit.

Section 33(f) of the Act, as set forth in 33 U.S.C. § 933(f), provides:

"If the person entitled to compensation institutes proceedings within the periodprescribed in subdivision (b) of this section the employer shall be required topay as compensation under this chapter a sum equal to the excess of the amountwhich the Secretary determines is payable on account of such injury or deathover the amount recovered against such third person."

Section 33(e) of the Act, as set forth in 33 U.S.C. § 933(e), provides:

"Any amount recovered by such employer on account of such assignment,

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10

whether or not as the result of a compromise, shall be distributed as follows:

"(1) The employer shall retain an amount equal to—

"(A) the expenses incurred by him in respect to such proceedings orcompromise (including a reasonable attorney's fee as determined by the deputycommissioner or Board);

"(B) the cost of all benefits actually furnished by him to the employee undersection 907 of this title;

"(C) all amounts paid as compensation;

"(D) the present value of all amounts thereafter payable as compensation, suchpresent value to be computed in accordance with a schedule prepared by theSecretary, and the present value of the cost of all benefits thereafter to befurnished under section 907 of this title, to be estimated by the deputycommissioner, and the amounts so computed and estimated to be retained bythe employer as a trust fund to pay such compensation and the cost of suchbenefits as they become due, and to pay any sum finally remaining in excessthereof to the person entitled to compensation or to the representative; and

"(2) The employer shall pay any excess to the person entitled to compensationor to the representative, less one-fifth of such excess which shall belong to theemployer."

In Edmonds v. Compagnie Generale Transatlantique, 443 U.S. 256, 269, 99S.Ct. 2753, 2761, 61 L.Ed.2d 521, we described § 33(b):

"Under § 933(b), an administrative order for benefits operates as an assignmentto the stevedore-employer of the longshoreman's rights against the third partyunless the longshoreman sues within six months."

See nn. 3, 4, supra.

As originally enacted, and until 1959, § 33(a) read:

"If on account of a disability or death for which compensation is payable underthis Act the person entitled to such compensation determines that some personother than the employer is liable in damages, he may elect, by giving notice tothe deputy commissioner in such manner as the commission may provide, toreceive such compensation or to recover damages against such third person." 44Stat. (part 2) 1440.

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The original § 33(b) provided:

"Acceptance of such compensation shall operate as an assignment to theemployer of all right of the person entitled to compensation to recover damagesagainst such third person, whether or not the person entitled to compensationhas notified the deputy commissioner of his election." 44 Stat. (part 2) 1440.

From 1938 until 1959, § 33(b) provided:

"Acceptance of such compensation under an award in a compensation orderfiled by the deputy commissioner shall operate as an assignment to theemployer of all right of the person entitled to compensation to recover damagesagainst such third person." 52 Stat. 1168.

The amendment's purpose was explained in the House Report:

"The purpose of this amendment is to remove possible cause of complaintregarding the operation of the provision in subdivision (b) of section 33 inmaking the mere acceptance of compensation work automatically anassignment to the employer of all rights of action against the third party tortfeasor. Acceptance of compensation without knowledge of the effect upon suchrights may work grave injustice. The assignment of this right of action againstthe third party might properly be contingent upon the acceptance ofcompensation under an award in a compensation order issued by the deputycommissioner, thus giving opportunity to the injured person . . . to consider theacceptance of compensation from the employer with the resulting loss of rightto bring suit in damages against the third party, or a refusal of compensation soas to pursue the remedy against the third party alleged to be liable for theinjury." H.R.Rep.No.1945, 75th Cong., 3d Sess., 9 (1938).

See also Hernandez v. Costa Armatori, S. p. A., 467 F.Supp. 1064, 1066(EDNY 1979), affirmance order, 622 F.2d 573 (CA2 1980).

In the interim between the 1938 amendment and the decision in Czaplicki, thisCourt issued two decisions of some significance to the present case. In 1946, inSeas Shipping Co. v. Sieracki, 328 U.S. 85, 66 S.Ct. 872, 90 L.Ed. 1099, theCourt concluded that an injured longshoreman could pursue a third-party claimagainst a shipowner for unseaworthiness, as well as for negligence. In 1956, inRyan Stevedoring Co. v. Pan-Atlantic S.S. Corp., 350 U.S. 124, 76 S.Ct. 232,100 L.Ed. 133, the Court held that a shipowner found liable to a longshoremanfor damages in a third-party action could seek indemnification from thestevedore based upon the stevedore's contractual duty to provide workmanlikeservice. Congress in 1972 overruled both Sieracki and Ryan Stevedoring. SeeEdmonds v. Compagnie Generale Transatlantique, 443 U.S., at 262, 99 S.Ct.,

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at 2757.

Section 33(i) of the Act as it read in 1956 provided that a stevedore'scompensation insurer was subrogated to the stevedore's rights in the assignedclaim. "Travelers, therefore, was the proper party to sue on those rights ofaction." 351 U.S., at 529, 76 S.Ct., at 948. The subrogation provision is now §33(h), 33 U.S.C. § 933(h).

The Court explained its reasoning in detail:

"[T]he injured employee has an interest in his right of action even after it hasbeen assigned. Normally, this interest will not be inconsistent with that of theassignee, for presumably the assignee will want to recoup the payments madeto the employee. Since the assignee's right to recoup comes before theemployee's interest, and because the assignee is likely to be in a better positionto prosecute any claims against a third party, control over the right of action isgiven to the assignee, who can either institute proceedings for the recovery ofdamages against a third person, 'or may compromise with such third personeither without or after instituting such proceeding.' § 33(d), 33 U.S.C. § 933(d).In giving the assignee exclusive control over the right of action, however, wethink that the statute presupposes that the assignee's interests will not be inconflict with those of the employee, and that through action of the assignee theemployee will obtain his share of the proceeds of the right of action, if there isa recovery. Here, where there is such a conflict of interests, the inaction of theassignee operates to defeat the employee's interest in any possible recovery.Since an action by Travelers would, in effect, be an action against itself,Czaplicki is the only person with sufficient adverse interest to bring suit. In thiscircumstance, we think the statute should be construed to allow Czaplicki toenforce, in his own name, the rights of action that were his originally." 351U.S., at 531, 76 S.Ct., at 950.

At several points in the Czaplicki opinion, the Court emphasized the limitednature of its holding:

"Czaplicki's rights of action were held by the party most likely to suffer werethe rights of action to be successfully enforced. In these circumstances, wecannot agree that Czaplicki is precluded by the assignment of his rights ofaction from enforcing those rights in an action brought by himself." Id., at 530,76 S.Ct., at 949.

"Respondents contend that since Czaplicki did not, under § 33(a), 33 U.S.C. §933(a), elect to proceed against third parties, but rather chose to acceptcompensation, he can in no event revoke this election and maintain this suit.But, as this Court has already pointed out, 'election not to sue a third party and

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assignment of the cause of action are two sides of the same coin.' AmericanStevedores, Inc. v. Porello, 330 U.S. 446, 455, 67 S.Ct. 847, 852, 91 L.Ed.1011. Czaplicki can bring suit not because there has been no assignment, butbecause in the peculiar facts here there is no other procedure by which he cansecure his statutory share in the proceeds, if any, of his right of action. For thesame reason, we hold that the election to accept compensation, as a step towardthe compensation award, does not bar this suit." Id., at 532-533, 76 S.Ct., at950-951.

The Court of Appeals explained the conflict created by Ryan Stevedoring:

"Since any recovery by the injured employee against the shipowner could berecouped in an action by the shipowner against the stevedoring company, thepractical effect of the Ryan case is to cause the employer-stevedoringcompanies, who may anticipate a shipowner's claim to indemnity to resist themaking of any payment to the injured stevedore until an award is made, atwhich time assignment of the cause of action by reason of the provisions of thestatute takes place. When the statutory assignment has taken place theemployer-stevedoring company will then refuse to bring an action against theshipowner, and by the same token would also refuse to reassign the cause ofaction to the injured stevedore, for to do so might result in an eventual highaward by way of indemnification against the stevedoring company and henceagainst the insurance carrier." 257 F.2d., at 545.

The Court of Appeals essentially articulated in greater detail a concernexpressed by Justice Black in his dissenting opinion in Ryan Stevedoring:

"The employer as an assignee of an employee's claim will know that if he winsa lawsuit, he loses a lawsuit." 350 U.S., at 145, 76 S.Ct., at 243.

Cf. Di Somma v. N. V. Koninklyke Nederlandsche Stoomboot, 188 F.Supp. 292(SDNY 1960). This expansion of Czaplicki was not, however, uniformlyaccepted by all federal courts. Other courts rejected a broad reading ofCzaplicki and limited the conflict-of-interest exception to the peculiar situationpresented in that case. See, e. g., Sabol v. Merritt Chapman & Scott Corp., 241F.2d 765 (CA2 1957).

See Hearings before a Special Subcommittee of the House Committee onEducation and Labor on Bills Relating to the Longshoremen's and HarborWorkers' Compensation Act, 84th Cong., 2d Sess. (May 23, 24, and June 11,1956) (House Hearings).

Congressman Zelenko opened his testimony by inserting into the record a copyof the Ryan Stevedoring decision, which he asserted "endangered or seriously

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weakened" the right of longshoremen to recover from third parties. See HouseHearings, at 1. Congressman Zelenko indicated that Justice Black's dissentaccurately summarized the damaging effects of that decision. Id., at 12. Hewent on to explain:

"H.R.5357 avoids and eliminates the circumstances indicated by Judge Blackwhere to the detriment of the employee, the employer under the present sectionand by reason of the Ryan decision may decide not to proceed with the third-party action." Ibid.

Later, in response to questioning by members of the Subcommittee,Congressman Zelenko explained the connection between H.R.5357 and RyanStevedoring in more detail:

"I hope I have answered your question by trying to show what the situation inthe Ryan case would be. That is the factual and the legal situation, andassuming we had the Ryan case pending at this time, the employer would loseany interest in proceeding with it, and the longshoreman would suffer. That iswhat Judge Black was talking about. Under H.R.5357 both parties go in thereand if the longshoreman chooses to go ahead, he does so; and if he does not goahead, the employer starts a lawsuit in his own behalf only after thelongshoreman has had the opportunity to do so, and he does not want to availhimself of it, then they give the employer this right of assignmentautomatically, so he gets the same measure of protection." House Hearings, at15.

The Zelenko bill also provided an added incentive for employers to sue bygiving them one-third of any excess recovery. See, e. g., id., at 12-13, 19, 43-44, 102.

See, e. g., id., at 28, 44-45, 61-62, 72, 103-105, 106-107, 110, 115, 124-125. Cf.id., at 83-84, 92-93. It should be noted that at the time of these hearingsCzaplicki was pending before this Court. Czaplicki's attorneys participated inthe hearings, and described to the Subcommittee the facts of Czaplicki and theCourt of Appeals' decision in that case. They also informed the Subcommitteethat this Court had granted Czaplicki's petition for certiorari, and that the casehad been argued. See House Hearings, at 59, 62.

The House Report on a predecessor of the bill that amended § 33(b) in 1959stated:

"Developments under the act which concerned the Subcommittee on Safety andCompensation have been . . . the automatic assignment of a third-party cause ofaction to the employer and the refusal by the employer to pursue the third-party

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claim because of a conflict of interest . . . ." H.R.Rep.No.229, 86th Cong., 1stSess., 3 (1959).

At the same time, Congress amended § 33(a) to provide expressly that theemployee need not elect between his statutory right to compensation from hisemployer and his claim against a third party. See n. 5, supra.

The Senate Report contained the following evaluation of the bill amending §33(b):

"The bill as amended by the committee would revise section 33 of the act so asto permit an employee to bring a third-party liability suit without forfeiting hisright to compensation under the act. . . . The committee believe that in theoryand practice this is [a] sound approach to what has been a difficult problem. Asembodied in the committee amendment, the principle would be applied withdue recognition of the equities and rights of all who are involved.

". . . In the event that an employee does not elect to sue for damages within 6months of the compensation award the employer is assigned the cause ofaction." S.Rep.No.428, 86th Cong., 1st Sess., 2 (1959), U.S.Code Cong. &Admin.News 1959, pp. 2134, 2135.

See id., at 2-3; H.R.Rep.No.229, supra, at 3-4. See also House Hearings, at 15,19-20, 44-45.

Whether the statutory language provides the exclusive solution for unsuualconflict-of-interest problems, such as that identified in Czaplicki, is a questionthat is not presented on the facts of these cases. We accordingly do not decidewhether, or to what extent, Czaplicki survived the 1959 amendments.

"Ordinarily, therefore, it is likely that the interests of both longshoreman andassignee in having their substantive rights pursued and of the third person infacing a single action will be achieved under LHWCA.

"But LHWCA does not yet deal directly with certain practical problems thatmay interrupt or wrench these expectations. These can arise whenever bydesign or inadvertence the longshoreman fails during the statutory period toprosecute the claim while the right of action is exclusively his. Following thisfailure, the assignee may, for a variety of reasons, not then itself prosecute theclaim. It may not consider a claim thought meritorious by the longshoreman tobe sufficiently so to warrant the expense of litigation. It may have a specificconflict of interest that militates against prosecuting the claim. It may simplybe dilatory to the point that the claim is threatened by a limitations bar. Underall of these, and to precisely the same degree under all, the longshoreman faces

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a practical problem for which LHWCA provides no direct solution: forcingaction by the assignee, or somehow retrieving the right of action. WhileLHWCA does not specifically provide the solution, it certainly cannot bethought to have been intended by Congress that the longshoreman's substantiveright might be lost simply through inaction of the assignee until the claim isbarred from prosecution by anyone. What is needed is a solution thatadequately protects the assignee's first right of exclusive action but that alsoprotects the longshoreman's substantive right against loss through inaction ofthe assignee for whatever reason." 618 F.2d, at 1045.

The District Court in the Perez case aptly evaluated the so-called "problem"created by an employer's failure to sue after statutory assignment of theemployee's cause of action:

"[W]hatever the consequences of a failure to sue, an employee who fails to suewithin six months of accepting compensation under an award . . . is asresponsible for that failure as an employer who neglects, for whatever reason,to pursue an assigned claim." 468 F.Supp., at 802.

"Consequently, as we have done before, we must reject a 'theory that nowhereappears in the Act, that was never mentioned by Congress during thelegislative process, that does not comport with Congress' intent, and thatrestricts . . . a remedial Act . . . .' Northeast Marine Terminal Co. v. Caputo,432 U.S. [249], at 278-279 [97 S.Ct. 2348, at 2365, 53 L.Ed.2d 320]."Edmonds v. Compagnie Generale Transatlantique, 443 U.S., at 271, 99 S.Ct.,at 2762.

Petitioners suggest that such an automatic rule is justified because of astevedore's normal reluctance to file suit against a customer. However, inrejecting a similar conflict-of-interest argument, the District Court inHernandez v. Costa Armatori, S. p. A., 467 F.Supp. 1064, at 1067-1068,identified the flaw in this reasoning:

"[T]his is not the kind of matter that Congress could have viewed as sufficientto invalidate the assignment. Such a conflict has always been inherent in thestatutory scheme. Presumably every stevedore would prefer not to give offenseto its customer.

* * * * *

"Plaintiff has thus referred only to 'conflicts of interest' of which Congress wasaware in enacting the statute. To allow them as exceptions to the statutoryassignment would be to read Section 933(b) out of the Act."

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In addition, where, as is often the case, the stevedore's insurer is subrogated tothe stevedore's interest in an assigned claim, see 33 U.S.C. § 933(h), thispotential conflict probably will not be of much significance. The insurer isunlikely to sacrifice a meritorious claim for fear of antagonizing a customer ofthe stevedore.

Nor did it correctly construe Czaplicki. As discussed supra, at 605-607, thatdecision was narrowly drawn to redress certain inequities that arose from "thepeculiar facts" of that case. Czaplicki did not hold that the § 33(b) assignmentcould be avoided whenever an employer failed to pursue an assigned claim.

Indeed, shortly after Wynn was decided, the Fifth Circuit concluded that, whileCzaplicki was still good law, it should be narrowly applied to specific conflictsof interest identified on a case-by-case basis. See McClendon v. CharenteSteamship Co., 348 F.2d 298, 301-303 (1965). The court expressly declined toadopt the automatic rule applied in Wynn. See 348 F.2d, at 303.

See Director, Office of Workers' Compensation Programs v. Rasmussen, 440U.S. 29, 32-35, 99 S.Ct. 903, 906-908, 59 L.Ed.2d 122.

See Edmonds v. Compagnie Generale Transatlantique, supra, at 262, 99 S.Ct.,at 2757.

In its explanation of the reasons for eliminating the unseaworthiness remedy,the House Report accompanying the 1972 Amendments stated:

"The Committee heard testimony that the number of third-party actions broughtunder the Sieracki and Ryan line of decisions has increased substantially inrecent years and that much of the financial resources which could be betterutilized to pay improved compensation benefits were now being spent to defraylitigation costs. Industry witnesses testified that despite the fact that since 1961injury frequency rates have decreased in the industry, and maximum benefitspayable under the Act have remained constant, the cost of compensationinsurance for longshoremen has increased substantially because of theincreased number of third party cases and legal expenses and higher recoveriesin such cases. The Committee also heard testimony that in some cases workerswere being encouraged not to file claims for compensation or to delay theirreturn to work in the hope of increasing their possible recovery in a third partyaction." H.R.Rep.No.92-1441, 92d Cong., 2d Sess., p. 5 (1972), U.S.CodeCong. & Admin.News 1972, pp. 4698, 4702.

"Congress has put down its pen, and we can neither rewrite Congress' words norcall it back 'to cancel half a Line.' Our task is to interpret what Congress hassaid . . .." Director, Office of Workers' Compensation Programs v. Rasmussen,

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supra, at 47, 99 S.Ct., at 913.

As our analysis indicates, the 1959 and 1972 Amendments have substantiallyundercut the basis for the Czaplicki exception to § 33(b). The Court wastroubled in Czaplicki because under the Act in 1956 there was "no otherprocedure" by which a longshoreman could enforce his rights against a thirdparty where the employer failed to sue due to a conflict of interest. 351 U.S., at532-533, 76 S.Ct., at 950-951. After the 1959 amendments, there is such aprocedure: the employee may simply file his own third-party suit within sixmonths after accepting compensation.

Similarly, to the extent that Czaplicki and its progeny sought to mitigate theconflict of interest created by Ryan Stevedoring, the 1972 Amendmentseliminate the need for a judicially created exception to § 33(b):

"[B]efore the [1972] Amendments, the longshoreman and the stevedore hadadverse interests in the third-party action: if the longshoreman were successfulin that suit, the shipowner frequently would attempt to require the stevedore tomake payment of amounts due the longshoreman. With the abolition of theshipowner's cause of action, the stevedore and the longshoreman had acommon interest in the longshoreman's recovery against the shipowner."Bloomer v. Liberty Mutual Ins. Co., 445 U.S. 74, 84-85, 100 S.Ct. 925, 932-933, 63 L.Ed.2d 215.

See also Valentino v. Rickners Rhederei, G. M. B. H., 552 F.2d 466, 470 (CA21977).

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